The case against Colorado’s pot law

The Con­sti­tu­tion is clear: Fed­eral laws trump state laws.

Los Angeles Times - - OP-ED - By Zachary Bolitho s surely as Zachary Bolitho is a pro­fes­sor at the Camp­bell Univer­sity School of Law. Be­fore join­ing academia he was a fed­eral pros­e­cu­tor with the Depart­ment of Jus­tice.

Apres­i­den­tial can­di­dates prom­ise to change Washington, nom­i­nees for at­tor­ney gen­eral pledge to up­hold the law, not per­sonal pol­icy pref­er­ences. Loretta Lynch, now the 83rd at­tor­ney gen­eral of the United States, was no dif­fer­ent when she made her case to Congress in Jan­uary. Try­ing to dis­tin­guish her­self from her light­ning rod of a pre­de­ces­sor, Eric H. Holder Jr., she said the law would be her “lodestar.”

In the Supreme Court case Ne­braska and Ok­la­homa vs. Colorado, Lynch has a chance to prove that her state­ment was more than a con­fir­ma­tion hear­ing cliche.

Ne­braska and Ok­la­homa claim that the fed­eral Con­trolled Sub­stances Act, or CSA, pre­empts Colorado’s mar­i­juana law. Be­cause the case in­volves one state su­ing another, it falls within a spe­cial cat­e­gory of law­suits that go straight to the Supreme Court. Typ­i­cally, the fed­eral gov­ern­ment would be the en­tity seek­ing to en­force fed­eral law against a state. But be­cause the Depart­ment of Jus­tice un­der Holder re­fused to chal­lenge Colorado’s law, Ne- braska and Ok­la­homa — neigh­bor­ing states that say mar­i­juana is flow­ing across their borders and bur­den­ing their crim­i­nal jus­tice sys­tems — have taken on the task.

The Supreme Court re­cently asked the fed­eral gov­ern­ment to file a brief ex­plain­ing its po­si­tion on the is­sue, which is ex­pected shortly. From a le­gal stand­point, the cor­rect opin­ion is ob­vi­ous: Lynch must side with Ne­braska and Ok­la­homa.

Be­fore read­ing any fur­ther, please un­der­stand that this is not about mar­i­juana, per se. There is a le­git­i­mate de­bate to be had re­gard­ing our na­tional mar­i­juana pol­icy. That de­bate, how­ever, is ir­rel­e­vant to the is­sue of whether the CSA in­val­i­dates Colorado’s mar­i­juana law.

Un­der the supremacy clause of the Con­sti­tu­tion, when fed­eral and state law clash, fed­eral law wins. Ac­cord­ingly, the Supreme Court has es­tab­lished that if a state law in­ter­feres with con­gres­sional poli­cies and ob­jec­tives, it can­not stand.

That’s pre­cisely what we have with Colorado’s mar­i­juana law and the CSA. Passed by Congress in 1970, the CSA com­pre­hen­sively reg­u­lates the man­u­fac­ture, dis­tri­bu­tion and pos­ses­sion of drugs. A cen­tral fea­ture of the CSA is a clas­si­fi­ca­tion sys­tem that sep­a­rates drugs into five “sched­ules.” Sched­ule I drugs are the most heav­ily reg­u­lated be­cause they have no ac­cepted med­i­cal use and a high po­ten­tial for abuse. From the in­cep­tion of the CSA to present, mar­i­juana has been listed in Sched­ule I.

It is there­fore a fed­eral crime to pos­sess, dis­trib­ute or man­u­fac­ture mar­i­juana. It is also a fed­eral crime to own, lease, use or main­tain any prop­erty for the pur­pose of man­u­fac­tur­ing or dis­tribut­ing mar­i­juana. Vi­o­la­tions of the CSA are pun­ish­able by im­pris­on­ment. And the CSA fur­ther pro­vides that all money gen­er­ated by the sale of illegal drugs, in­clud­ing mar­i­juana, is for­feitable to the fed­eral gov­ern­ment.

Notwith­stand­ing the clear terms of the CSA and the equally clear terms of the supremacy clause, Colorado passed a law au­tho­riz­ing the dis­tri­bu­tion, man­u­fac­ture and pos­ses­sion of mar­i­juana. Put sim­ply, Colorado treats mar­i­juana deal­ers like le­git­i­mate en­trepreneurs.

But the re­al­ity is that ev­ery state- li­censed mar­i­juana dis­pen­sary in Colorado is in di­rect vi­o­la­tion of the CSA. Ev­ery dol­lar that Colorado’s state- li­censed mar­i­juana dis­pen­saries gen­er­ate is for­feitable un­der the CSA as crim­i­nally de­rived prop­erty.

If states are free to dis­re­gard fed­eral laws they don’t like, then our en­tire gov­ern­men­tal struc­ture is at risk. What’s next? Could a state that doesn’t like the fed­eral Clean Wa­ter Act pass a law au­tho­riz­ing the pol­lu­tion of its wa­ter­ways? Could a state that doesn’t like the fed­eral Brady Hand­gun Vi­o­lence Preven­tion Act pass a law au­tho­riz­ing gun deal­ers in­side its borders to sell hand­guns with­out con­duct­ing back­ground checks? Are con­gres­sional en­act­ments sim­ply sug­ges­tions that the states may ac­cept or re­ject at their plea­sure? That’s not how our sys­tem is sup­posed to work.

Rec­og­niz­ing as much, the Jus­tice Depart­ment — un­der Holder’s lead­er­ship — suc­cess­fully ar­gued in the 2012 case Ari­zona vs. United States that fed­eral law pre­empted Ari­zona’s con­tro­ver­sial immigration law. The sit­u­a­tion in Ne­braska and Ok­la­homa should re­ceive the same treat­ment.

The framers un­der­stood that there would be oc­ca­sional conf licts be­tween state and fed­eral law. And in the supremacy clause, they pro­vided a clear in­struc­tion for re­solv­ing such con­flicts: Fed­eral law wins. That is true re­gard­less of whether the fed­eral law is bad pol­icy or out­dated or dra­co­nian. And it is true re­gard­less of whether the fed­eral law aligns with the po­lit­i­cal pref­er­ences of the cur­rent pres­i­den­tial ad­min­is­tra­tion.

If the law is re­ally Lynch’s “lodestar,” then she has no choice but to ar­gue that the CSA pre­empts Colorado’s mar­i­juana law.

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